In re Interest of D.H.

644 S.W.3d 327

In the INTEREST OF: D.H.

No. ED 109226

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: May 3, 2022

FOR APPELLANT: Amy M. Bartholow, Missouri Public Defender's Office, 1000 West Nifong, Building 7, Suite 100, Columbia, Missouri 65203, Jeffrey C. Esparza, 920 Main Street, Suite 500, Kansas City, Missouri 64105.

FOR RESPONDENT: James A. Michaels, Jr., St. Louis Family Court, 920 Vandeventer Boulevard, St. Louis, Missouri 63108.

Philip M. Hess, Judge

Introduction

D.H. appeals the juvenile court's judgment finding he committed, if he was an adult, third-degree domestic assault and failed to appear for a prior adjudication hearing. D.H. raises two points on appeal. In his first point, D.H. argues the juvenile court, by conducting his adjudication hearing without his physical presence, violated his constitutional rights to confront the witnesses against him, due process, and be present at all critical stages. In his second point, D.H. argues there was insufficient evidence for the juvenile court to find he purposely failed to appear for a prior adjudication hearing.

Following an opinion by this Court on May 25, 2021, the case was transferred to the Missouri Supreme Court along with several similar cases involving proceedings conducted by video due to the COVID-19 pandemic. The Missouri Supreme Court issued three opinions in January 2022 and re-transferred this case with instructions for this Court to reconsider our holding given those decisions.¹

We hold the juvenile court violated D.H.’s constitutional right to confront the witnesses against him. Because we vacate the juvenile court's judgment and remand, we decline to address Appellant's second point.

Factual and Procedural Background

On February 28, 2020, the juvenile officer filed a petition alleging D.H. came within the juvenile court's jurisdiction under section 211.031.1(3)² and D.H. attempted to cause physical injury to A.W. ("Victim") by striking her.³ D.H. was not in custody when the petition was filed. D.H.’s adjudication hearing was scheduled for July 14, 2020. D.H. did not appear. Because D.H. failed to appear, the juvenile officer moved for the juvenile court to take D.H. into custody. The juvenile court granted the juvenile officer's motion. On August 7, 2020, the juvenile officer filed an amended petition, alleging, in addition to attempting to cause Victim physical injury by striking her, D.H. failed to appear for the July 14, 2020 adjudication hearing despite having notice.

D.H.’s adjudication hearing was held on September 9, 2020. The juvenile officer, the witnesses, and D.H.’s counsel were present at the hearing. D.H. appeared by two-way video conferencing from the juvenile detention center. D.H.’s counsel objected to D.H.’s physical absence from the adjudication hearing. D.H.’s counsel argued not allowing D.H. to be present at his adjudication hearing violated D.H.’s right to confrontation and interfered with D.H.’s ability to confer with counsel. The juvenile court responded:

All right. Well, the objection is noted and because of the pandemic, this is how we have proceeded, to not have the kids brought over from detention. And I've had several hearings, and how we proceeded is, if, during the hearing, that [D.H.]—if you have any questions, or you want to consult with your attorney, you need to let me know. Just indicate by speaking out or motioning or somehow because if you wish to speak to your attorney at any point, we will take a break and clear the courtroom and allow you and [counsel] to talk to each other.

And we can do that as many times as often as needed, so if there's at any point that you wish to communicate, again, with [counsel], please let us know, and I will stop the hearing immediately and let you two talk to each other.

...

That's how I've handled this, [counsel], as we've moved along. I understand your concern, but I think it's necessary in light of the pandemic, and we've been able to move forward under that procedure. And I guess the same token: If you feel the need to speak to your client at any point as well, again, you can let me know, and we'll recess for that to occur.

The juvenile court took judicial notice of its "file and contents thereof." The juvenile court then conducted D.H.’s adjudication hearing without D.H.’s physical presence. D.H.’s counsel participated in the adjudication hearing by cross-examining the witnesses in person. At the close of the juvenile officer's evidence, the juvenile court ordered a short recess so D.H. and his counsel could confer. D.H. testified at his adjudication hearing by video.

During closing argument, the juvenile officer argued:

And then I will just say as to the allegation ... that the juvenile violated an order by failing to appear on July the 14th. The record is very clear. I asked the Court to take judicial notice. We were all in court on that day. There is no question. [D.H.’s counsel] informed the Court that day that he had been in contact with [D.H.], and [D.H.] knew that he was supposed to be here, and he didn't show up. We waited a long time, and he didn't show. So I believe that the record is very clear that that offense was also committed, Your Honor.

The juvenile court found D.H. committed, if he was an adult, third-degree domestic assault. The juvenile court also found D.H. failed to appear for a prior adjudication hearing. The juvenile court awarded care, custody, and control of D.H. to the Division of Youth Services for appropriate placement in a residential facility.

This appeal follows.

Standard of Review

Juvenile proceedings are reviewed like other court-tried cases. D.C.M. v. Pemiscot County Juvenile Office , 578 S.W.3d 776, 786 (Mo. banc 2019) (citing C.G.M., II v. Juvenile Officer , 258 S.W.3d 879, 882 (Mo. App. W.D. 2008) ). We will affirm a judgment in a juvenile proceeding unless it is not supported by evidence, is against the weight of evidence, or erroneously declares or applies the law. Id. (citing In re A.S.W., 226 S.W.3d 151, 153 (Mo. banc 2007) ). The constitutional protections applicable in criminal proceedings also apply in juvenile delinquency proceedings. C.A.R.A. , 637 S.W.3d at 54 (citing In re N.D.C. , 229 S.W.3d 602, 605 (Mo. banc 2007) ). Whether a person's rights were violated under the Confrontation Clause is a question of law this Court reviews de novo. C.A.R.A. , 637 S.W.3d at 54 (citing State v. Justus , 205 S.W.3d 872, 878 (Mo. banc 2006) ). Properly preserved confrontation clause violations are presumed prejudicial. C.A.R.A. , 637 S.W.3d at 54 (citing Justus , 205 S.W.3d at 881 ).

Discussion

Point I: Adjudication Hearing Conducted Without D.H.’s Physical Presence

In his first point, D.H. argues the juvenile court violated his constitutional rights to confrontation, due process, and be present at "critical stages" as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, Article I, section 18(a) of the Missouri Constitution, and Rule 128 when the juvenile court conducted his adjudication hearing without his physical presence.⁴ D.H. argues his constitutional right to confront the witnesses against him was violated because the juvenile court conducted his adjudication hearing without his physical presence. The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]" U.S. CONST. amend. VI. The Sixth Amendment applies to the states through the Fourteenth Amendment. Justus , 205 S.W.3d 872 at n.6.

The juvenile officer argues the trial court did not err in proceeding without D.H.’s physical presence because it made an individualized finding a remote appearance was necessary to protect him from COVID-19. Arguing the right to face-to-face confrontation is not absolute, the juvenile officer cites Maryland v. Craig , which held an accused's right to confrontation may be satisfied without a face-to-face confrontation "only where denial of such confrontation is necessary to further an important public policy and only where the testimony's reliability is otherwise assured." 497 U.S. 836, 837, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). The juvenile officer cites non-binding authority to argue the two-prong Craig test may be met where a juvenile is excluded from the courtroom to prevent spreading a virus to the juvenile detention population. The juvenile officer argues the orders of Missouri courts "clearly establish the procedures and rules set forth on court proceedings during the COVID-19 pandemic" and the trial court complied with these orders.

"Juvenile proceedings are civil, not criminal, and are focused on continuing care, protection, and rehabilitation of the juvenile, and not punishment." In re A.C.C. , 561 S.W.3d 425, 428 (Mo. App. E.D. 2018) (citing J.D.H. v. Juvenile Court of St. Louis Cty. , 508 S.W.2d 497, 500 (Mo. banc 1974) ). However, "the constitutional protections applicable in criminal proceedings are also applicable in juvenile delinquency proceedings due to the possibility of a deprivation of liberty equivalent to criminal incarceration." N.D.C. , 229 S.W.3d at 605. "We review de novo whether a defendant's constitutional rights have been violated." State v. Pate , 469 S.W.3d 904, 908 (Mo. App. E.D. 2015).

The right to confront witnesses is similar to the right to be physically present at a proceeding, but they are not the same. The Confrontation Clause provides "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." U.S. CONST. amend. VI. The right to be physically present has a due process component in addition to its roots in the Confrontation Clause. United States v. Gagnon , 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). While physical presence is an element of an individual's right to confrontation, a person has a due process right to be present in person even when he is not being...